Ethics reform: Cuomo-style

Much skepticism has been expressed about the newly convened Joint Commission on Public Ethics, New York’s most recent attempt to establish a serious and independent agency to investigate and prosecute unethical conduct in state government. The skeptics were substantially validated last month by the appointment of longtime Andrew Cuomo retainer Ellen Biben and the manner of her selection.

Biben, who previously served Andrew as inspector general and prior to that as one of his deputies in the Office of Attorney General, was secretly appointed by the Commission on Jan. 31. The appointment was confirmed publicly only after word of it appeared in the New York Times, which also reported the direct and heavy handed involvement of the Cuomo administration. This included extensive lobbying with legislative leaders and the commissioners, breaching “the typical arm’s-length relationship between the commission and the governor’s office” that apparently was honored for all of two months.

Biben drew high praise from former Manhattan District Attorney Robert Morgenthau, who once was her boss as he was for Eliot Spitzer, Mario Cuomo’s son and the junior versions of JFK, Bobby Kennedy and Cyrus Vance and many other offspring of the rich and famous who want “prosecutor” on their curriculum vitae. Better insight into Biben than the frequently fallible Morgenthau “worked for me — so terrific” rubber stamp is available from the highest profile probe she conducted for Cuomo. She was in charge of Andrew’s July 2007 “Troopergate” investigation. That work provides real insight into how Biben may do her job when and if Andrew’s administration must be investigated. The Cuomo/Biben Troopergate probe was so badly done that nine other inquiries were conducted by other agencies. None of those bodies nor the public considered the Cuomo/Biben probe unbiased and comprehensive, so it was accorded little respect.

The Weekender was one of five senior Spitzer administration lawyers who defended the Second Floor in Andrew’s botched inquiry and the other Troopergate investigations, a sequence of events the reader wanted to forget but now must be reminded of. The Troopergate probes began with the Cuomo investigation of whether then-Senate Majority Leader Joe Bruno had illegally used the state’s air fleet for personal and political trips. That probe soon properly morphed into one which also included investigating whether Spitzer administration officials had improperly used the state police to spy on Bruno and collect evidence regarding his alleged misuse of the state’s aircraft.

Rushing to judgment in less than three weeks, the Office of Attorney General released a 53-page report without doing most things necessary to make the investigation complete and establish confidence in its findings. On the “were Spitzer and/or his staff bad?” side of the probe, Biben never subpoenaed sworn oral testimony from the three top officials suspected of misconduct, namely Communications Director Darren Dopp, Secretary to the Governor Rich Baum nor Eliot himself.

Of these, only Dopp was cited for misconduct in the Cuomo/Biben report. Two years and nine investigations later, both Dopp and Baum accepted findings of misconduct from the now defunct Public Integrity Commission and Eliot properly was exonerated. But in July 2007, few respected the Cuomo/Biben pronouncements on the state’s top two officials. Eliot and Baum tried to govern the state under a cloud of suspicion, in Eliot’s case unwarranted, for the balance of the short and tragic Spitzer reign.

On the “was Joe Bruno bad?” side of the probe, virtually nothing was done. Bruno was not questioned and only a cursory inspection of readily available documents made. The amateurish investigation ended with a finding of “no violation,” citing one old and ambiguous state ethics ruling, directly contradicted by other state legal authorities. The reason Biben failed to conduct even a rudimentary probe of Bruno’s alleged misuse of state aircraft was apparent to people who remember the state and federal episodes of “Air Cuomo.”

In the first seven of Mario Cuomo’s 12 years as governor, members of his family took 762 trips on state aircraft, many without the governor on board. After leaving office, Mario reimbursed the state for a small number of these flights. Years later, while serving as secretary of HUD, the Department of Housing and Urban Development, in the Clinton administration, Andrew traveled to New York 24 times at taxpayer expense, while traveling to no other state more than four times. The travel to New York coincided with the planning stages of Andrew’s failed 2002 bid for governor. A comprehensive investigation of Joe Bruno’s alleged misuse of state aircraft would inevitably have reminded the public of the two Air Cuomo eras, an inconvenience Biben avoided with her truncated inquiry.

Andrew attempted to explain the failure to obtain sworn oral testimony from Bruno, Spitzer, Baum, Dopp and others, citing a lack of subpoena power, a false assertion since the attorney general has such power in tax investigations. The tax aspect of Bruno’s conduct was clear and clearly stated right in the Cuomo-Biben report. Moreover, Andrew had simply to ask Eliot for “Special Prosecutor” designation and given the circumstances, it would have been conferred along with additional subpoena authority.

Biben’s shoddy Troopergate probe spawned the others, left the governor crippled, with Bruno his chief antagonist strutting and avoided a searching re-examination of Air Cuomo, the greatest travel scandal in the state’s history. Biben’s first reward from Andrew was designation as inspector general. Andrew had fought a very public and bloody fight with Susan Gaffney, a holdover inspector general at HUD, so this time he made sure the role was filled by a loyalist. Biben’s most recent reward is her new job heading the ethics commission, which Andrew has designated as one of the signal achievements of his first year in office. Biben’s career as a prosecutor demonstrates that she knows how to conduct serious and thorough investigations and also how and when not to. We can hope for the best here, but the new ethics commission is off to a very troublesome start.

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About Lloyd

Lloyd is a litigator and author whose work in antitrust and civil liberties law and poor people’s advocacy in and opposed to government involves many important, controversial and heavily reported legal, political and business trends in America from the late 1960s to the present.